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Podcasting

Podcast Music Licensing For Outlaws

I’ve received a lot of e-mails, over the past few months, on the subject of podcasting and the legal ramifications of playing non “podsafe” music. I thought I would put together this post to open any doors and serve as a resource for anyone thinking of starting a podcast. Should you have any questions feel free to leave a comment.

Ben,

I listened to your podcast last night on my drive home. I loved it.

I’ve been wanting to do a music podcast with the stuff that I listen to for some time, but was under the impression that I couldn’t. Then, I hear music that I know and love on your podcast, and realize that the stuff I like might be podcastable after all.

But then I read about the ASCAP license that you paid (“for the cost of an iPod…”). I’d be more than willing to do that to create my own podcast, but then I see that not all the music I like is under ASCAP. For instance, if I wanted to play a Shins song on my podcast, I couldn’t do that because they are not under the ASCAP license.

So are you not able to play a Shins song? Or do you pay multiple licenses (to BMI and ASCAP)? Is this just something you pay out of your own pocket? How much did the whole venture cost you to start?

I’m trying to find out this information through research, but nothing’s clear.

I want to do this, but I’m not a rich man, nor am I an IP attorney.

Any advice?

Matt

Dear Matt,

Let me first start off and say that I am not a lawyer and everything I say is not intended for business models or as gospel. I am a dude, who loves music and finds connecting with people over music to be one of the most rewarding things I have ever done with my life.

(Pretty strong stuff huh? Hope I don’t start crying.)

Since podcasting is such an unbelievably new medium, it’s sometimes difficult to understand what you can or cannot do. ASCAP and BMI licensing for podcasters is really half of the puzzle. Just because you are licensed by them to play their music, you still technically have no right to play an individual recording. The only person who can give you that right, is the owner of the actual recording rights.

Hey Jude is owned by Michael Jackson.

This would mean the time it would take and the money it would cost to put a podcast together would be outrageous: Tracking down owners of music, securing rights, filling out forms, paying fees, and doing things which make you break out in a cold sweat in the middle of the night.

The other worry was, if I play music on my show and I distribute it to listeners, could I be charged with file trading? Those are big fines, and courts seem to love big corporations with lots and lots of money who can afford lawyers in fine silk suits.

So, I adopted the unique stance of saying “Hey, there are artists online, like the shins, who put their music online as promotional material and if I play these MP3s on my show… would the artist care? Or since they are online as promotional material, could I just assume I am using them for the bands promotion and is that covered under fair use?”

Hence I came up with the philosophy of only playing music that bands make available directly as MP3. Since then (October 2004) I haven’t received a letter from a band or label complaining about my use. In fact many of the bands I play write me thanking me and asking where I first heard their music. It also helps that I talk over the intro and outros of songs to further dissuade record companies from thinking I am distributing their music unaltered.

What I’m really saying is, you might have to go out on a limb my friend and see if it breaks. If it does, well, we’ve all got to adapt. Hell Matador started their own podcast so my well of available tunes could dry up if they pull their individual songs… but then again we’re pretty savvy folks and I’m sure we’ll find new ways to express ourselves.

Until record companies really grasp what podcasting can do for them – they aren’t going to create podcasting agreements with us, so we kind of have to break the rules until they do say “Hey that’s f-ing fantastic! Use our music!”

But hell, so I’ve heard, is still very hot.

10 replies on “Podcast Music Licensing For Outlaws”

This is exactly what I was looking for. My main purpose in wanting to do what you do is to share music with my friends. I figure if they like something I play, then we'll have more to talk about. Plus, they might buy the album.

I can't figure out for the life of me why labels, ASCAP, BMI, or the RIAA would expect that I pay them for that promotion. Here's hoping that you're right, my friend, and that lawyers in fine suits don't come raining down on me when I start throwing my show out there.

I'll shoot you an email when I am up and running.

Any chance that you'd like to share with potential podcasters your recording setup and how you make it all happen?

Thanks for the speedy reply.

Matt

This is almost the exact model that I was (am) going to use for my podcast (it will be from ipodnirvana.com).

Another thing that I plan on doing which certainly can't hurt, is to actually encourage people to go and buy the recording, and making sure that I give my opinion about the track.

By stating your opinion about the music, positive *or* negative, you help build a case for fair use.

I think that having a disclaimer stating your intentions to promote the music, and letting artists know how they can contact you to have their material included in *or* removed from your podcast can help.

I've discovered a lot of great music from listening to TUTT, and there are some bands, The Dears, for example, who can thank Funtime Ben for at least one sale.

and i am a NET PIRATE mehehehehehee

arrr

avast ye shivering timbers matey

Unlike ben, i am using the model of 'nobody listens to our podcast so hopefully we wont get in trouble', and playing what i want. but obviously one day fbi agents will burst through my windows with semi automatic machineguns, and at this point, i will blame Steve.

What the f man!!
I dunno, i read the paper today and there was this big supreme court ruling against file sharing and I was all pissed at the idiocracy of our justice system and how far it can be taken when i just want to to listen to music and not have to pay up the ass for it.
Then i came home and found out the new itunes version 4 point….whatever the hell it is, and it has PODCASTING…..whooa, hope remained for independent ideology in the corporate world, or so i thought. After reading this reply ol benny, it makes me wonder, is this whole prescribing to ASCAP liscenced songs why you arent in the itunes new fangangled podcast directory?? is friggin crap dude, yours is like the one of the only podcasts i subscribe to and the iPodder is less than hassle but more than simple.
dissapointedly yours,
dave

Unfortunately it looks like that’s the case. Funny as Adam Curry’s podcast routinely plays music that isn’t “podsafe” well what are you going to do? Apple is just protecting their self interests… maybe it just calls for better promotion on my end. Unfortunately, It looks like iTunes isn’t going to be my buddy. Ahh well I’ll have to win podcast subscribers with my content rather then where I’m listed.

Is that really true? iTunes won’t list your show? That is the most rediculous thing i have ever heard in my life. The Rock N Roll Geek plays whatever the hell he wants, and you get the shaft for actually respecting the rights of the artists you play? THAT MAKES ME VERY ANGRY SO I’M GOING TO WRITE IN ALL CAPPS! Well… shit. I can’t tell you how many guests I have had on my show that sigh in agony at the prospect of having to actually find the songs they want to play on the internet. But it’s worth it. It important. Support the bands that get it by playing their music on your show. All those bands/lables that want some money for every instance/use of thier songs are stupid greedy little biatches that need to re-evaluate themselves and their marketing plan. How else are they getting their music out there? WE WILL DO IT FOR FREE. just because we like their music. Isn’t that the best advertizement anyways? someone who actually likes your music? GOSH!

~Mitch

Hey, Ben, thanks for a helpful post.

I've been wanting to start a podcast, and this kind of thing has me hesitating.

Do you think the ASCAP/BMI licenses are actually worth the money (which is a lot for me!)? I mean, if I shell out $600 to play music, and still can't legally do it, what's the use?

I'm leaning towards the ideology of MSMZ & Stagalicious. Keep it no-profit, underground & rebellious. My vision of a podcast is a short, lo-fi, mixtape that promotes my favorite bands. Hopefully I won't be arraigned!

OK –

Here’s my philosophy. I paid the BMI and ASCAP fees – but you know what? Podcasts are available worldwide, aren’t they? There’s JASRAC for Japan, GEMA for Germany, and God knows what else. How is all of that gonna get worked out?

I encode my show at a lo bitrate (64) and I talk all over the songs – and I play mostly crazy crap no one’s ever heard of anyways. I’ll just keep my eyes peeled to see what happens with Coverville – he encodes at 128 (normal MP3 bitrate), doesn’t talk over the songs, plays 2 in a row without talking – it would be real easy to pull stuff out of there that I wanted. I don’t want anything he plays, because I generally hate it, but that’s beside the point. I would imagine if anyone would be made an example of, it would be a high-profile guy like Mr. Coverville or Mr. Curry – and then I’d give it up and start podcasting me hanging out with my donkeys. Or just play stuff by friends of mine and myself – just have to wait and see.

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